Lasky v. Lansford , 76 F. App'x 240 ( 2003 )


Menu:
  •                                                                               F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    SEP 18 2003
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    RAYMOND LASKY,
    Plaintiff-Appellant,
    v.                                                          No. 03-2070
    DAVID LANSFORD, Mayor, City of                   (D.C. No. CIV-02-1113 LH/LCS)
    Clovis; RAYMOND MONDRAGON,                              (D. New Mexico)
    Manager, Chief of Police; WILLIAM
    CAREY, Chief of Police; DEBRA
    WINNETT; ROBERT DENNY;
    RUSSELL GOULD, Police, City of
    Clovis; REEVES, Deputy, Sheriff Curry
    County; STAN MIXON; DAVID
    BURRESS, Paramedics, City of Clovis
    Fire Department,
    Defendants-Appellees.
    ORDER AND JUDGMENT*
    Before KELLY, BRISCOE, and LUCERO, Circuit Judges.
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of this
    *
    This order and judgment is not binding precedent, except under the doctrines of
    law of the case, res judicata, and collateral estoppel. The court generally disfavors the
    citation of orders and judgments; nevertheless, an order and judgment may be cited under
    the terms and conditions of 10th Cir. R. 36.3.
    appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered
    submitted without oral argument.
    Plaintiff Raymond Lasky, appearing pro se, appeals the district court’s orders
    granting defendants’ motions to quash service of process, denying Lasky’s motions for
    default judgment and dismissing the case without prejudice, and denying his motion for
    reconsideration. We exercise jurisdiction pursuant to 
    28 U.S.C. § 1291
     and affirm.
    In his pro se complaint, Lasky alleged that defendants violated his rights under 
    42 U.S.C. §§ 1983
     and 1985 and various constitutional amendments. Lasky also filed a
    “Notice of Claim.” Defendants filed motions to dismiss pursuant to Federal Rule of Civil
    Procedure 12(b)(5) or, in the alternative, to quash, arguing service of process was
    ineffective because Lasky served defendants with the notice of claim but not with the
    actual complaint. Lasky responded that he properly effected service by delivering a copy
    of the summons and complaint to each defendant. Lasky also filed a motion for entry of
    default judgment pursuant to Federal Rule of Civil Procedure 55.
    The district court observed that the court requires a pro se plaintiff to “follow the
    same rules of procedure that govern other litigants.” ROA, Doc. 37 at 3 (quoting Green
    v. Dorrell, 
    969 F.2d 915
    , 917 (10th Cir. 1992)). After finding that defendants properly
    had challenged the sufficiency of the service of process, the district court proceeded to
    analyze whether Lasky had met his burden of establishing the validity of such service.
    See Fed. Deposit Ins. Corp. v. Oaklawn Apartments, 
    959 F.2d 170
    , 174 (10th Cir. 1992)
    2
    (stating plaintiff has burden of establishing validity of service of process). The district
    court concluded:
    Plaintiff has submitted no evidence to meet . . . his burden. All he has done
    is make conclusory statements that service was sufficient, i.e., that the
    complaint was in fact served. Given the record before the Court, I must
    agree with Defendants that Lasky’s attempt at service simply fails to
    comply with the requirements of Fed. R. Civ. P. 4(e).
    ROA, Doc. 37 at 3. Rather than dismissing the case, the district court quashed the
    insufficient service and allowed Lasky 30 days from the date the order was filed to file
    proof of sufficient service of process on defendants. Id. at 4. The court denied Lasky’s
    motion for default judgment as moot.
    Lasky filed a second motion for default judgment but did not file proof of
    sufficient service of process on defendants. The district court dismissed the complaint
    without prejudice based on Lasky’s failure to properly effect service of process and
    denied his second motion for default judgment as moot. Lasky’s motion for
    reconsideration was denied.
    We review orders of dismissal as a result of plaintiff’s failure to comply with the
    Federal Rules of Civil Procedure for abuse of discretion. See Olsen v. Mapes, 
    333 F.3d 1199
    , 1204 (10th Cir. 2003). Upon our review of the record on appeal as well as Lasky’s
    filings with this court, we cannot say that the district court abused its discretion in
    dismissing Lasky’s complaint for failure to properly serve defendants.
    We AFFIRM for substantially the same reasons set forth in the district court’s
    3
    orders filed February 11, 2003, and March 13, 2003.1
    Entered for the Court
    Mary Beck Briscoe
    Circuit Judge
    1
    We reject Lasky’s arguments that the district court violated the Due Process
    Clause and showed “partial prejudice toward Plaintiff-Appellant, and . . . special interest
    in Defendants’ . . . Attorney of Record.” Aplt. Br. at 4. The record does not support
    these allegations. Moreover, we reject the implication that Lasky was deprived of due
    process and equal protection when the district court failed to afford him a hearing prior to
    dismissing his complaint. There is no indication from the record that Lasky requested a
    hearing or proffered sufficient information establishing an issue of fact justifying an
    evidentiary hearing.
    4
    

Document Info

Docket Number: 03-2070

Citation Numbers: 76 F. App'x 240

Judges: Briscoe, Kelly, Lucero

Filed Date: 9/18/2003

Precedential Status: Non-Precedential

Modified Date: 8/3/2023